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Posts Tagged ‘estate planning’

Abilities & Limits of Advance Directives in Oregon

An advance directive is a complimentary service when you hire Gruber & Associates, P.C. in West Linn, OR for estate planning. Its scope is limited so it works best with other estate planning documents. While it definitely offers advantages and eases health care decision-making for your loved ones, an advance directive also has its limits. That emphasizes the need for a complete estate plan.

Abilities

An advance directive indicates your health care preferences if you are unable to communicate them to your doctor. It appoints a health care representative who executes these decisions, including any preferences regarding life-sustaining medical treatment.  

Apppoints an Advocate

While many people do not want to consider it, there is a possibility that you will suffer injury or illness substantial enough to leave you unable to communicate or make decisions. While healthcare providers use their best discretion, there is another possibility that their decisions will not match your preferences.

The healthcare representative acts as your voice when you cannot speak. Since most clients appoint someone in this capacity that is close to them, this individual understands your motivation and feels honor-bound to respect your wishes. Many clients choose a spouse, sibling or even a good friend to fulfill this role. If you have someone in your life you would prefer for this duty, it is a good idea to execute an advance directive.

Define Course of Health Care

Health care decisions may have religious inclinations, like Jehovah’s Witnesses and their avoidance of blood transfusions. Other times it is simply a preference for particular courses of treatment.

An advance directive allows specific instructions. You can designate specific doctors, health care facilities, and, if you are terminally ill, your choice for hospice care. There may be circumstances where you prefer to continue palliative treatment at home and avoid future hospital visits. If you have detailed preferences like this, you need an advance directive.

Limit Life-Sustaining Medical Procedures

The best-known feature of the advance directive is your decisions regarding life-sustaining medical procedures. Many clients execute one because they do not wish to be kept alive by machines. Others make different choices.

While an advance directive is sufficient for ensuring your wishes are granted, you may also sign Physician Orders for Life-Sustaining Treatment or POLST. This is an additional document provided by a doctor, clinic or hospital that remains in your file and removes any doubt of your decision. It is presented not only if you are terminally ill but sometimes before surgical procedures. Do not be surprised if one is presented to you if you are admitted to the hospital.

Limits

Advance directives define your course of health treatment but they have their limits. These are reassuring more than inconvenient, especially if you have a finished estate plan.

Indicate Burial Preferences

If you have any burial preferences, you should list them in your will. The advance directive is not an appropriate avenue for expressing this information.

Other options may include pre-planned funerals where you can confirm any religious or personal preferences. If you decide on something different, like donating your remains for study, that requires additional forms and an advance directive is not effective to assure that occurs. Many preferences require additional steps so discuss those first with your attorney before thinking one written note or document guarantees them.

Affect Insurance Coverage

There are concerns that insurance companies may require patients to sign an Advance Directive or face claim denial. This is not legal and any insurance company who insists on this should be reported to the Insurance Commission.

Signing an advance directive has no effect on insurance coverage or at least should have no effect on it. If you are not comfortable with executing an advance directive or feel pressured to do so, do not do it.

Authorize Euthanasia

There are occasional concerns that the Oregon Death with Dignity Act may authorize health care representatives to choose euthanasia over further treatment, However, the law makes that impossible.

To be eligible for death with dignity, a patient must be a resident of Oregon who is 18 years of age or older. If they are diagnosed with a terminal illness where death is imminent within six months, they must also be capable of communicating their own healthcare decisions at the time they request death with dignity. An attending physician determines whether a patient meets these criteria–not a healthcare representative.

Since the patient must choose and self-administer the euthanasia drugs, physicians cannot be involved at all except to determine if the situation is appropriate for this option. Between the mental capacity requirement and the self-administration one, there is no way that a healthcare representative can authorize this course of action–or legally compel a physician to administer the drugs.

It can be difficult to consider these worst-case scenarios, but taking the time to do so offers reassurance and peace of mind. To start designing your estate plan and long-term care decisions, contact Gruber & Associates, P.C. today to schedule an appointment.

Do Not Use Free Will Forms in Oregon!

Oregon residents frequently search for free legal forms and that includes wills. There is no approved State of Oregon Last Will and Testament form which allows legal document companies to take advantage of this market and tempt hapless consumers into saving legal fees.

Estate planning should not be a do-it-yourself activity and free Oregon will forms are the worst way to make this attempt. Here are four reasons why you need to stop wasting time finding a free form online and instead, call an Oregon estate planning attorney.

They are unlikely to be helpful

It takes effort to find a free will form online. Legal document services like LegalZoom charge for the service as they guide you through a series of questions. This is standard in this industry and in most cases, you will pay $30 to $100 for the service.

If you come across a free form, it is either extremely basic or without guarantees of legal validity. Most have not been evaluated by an attorney and are often thrown together by lay people hoping to attract website hits.  

AllLaw offers a paid service to customize a will but also includes this free will form. You have to cut and paste the text from the window to start drafting and there is little guidance. The form contains a warning that it is not reviewed by legal counsel and exists only for educational purposes:

  

Even if your search reveals a form that appears legitimate and may even been drafted by an attorney, you still do not know for certain if it is appropriate FOR YOU. A free form is often not the solution to your estate planning issues but the beginning of new ones.

They don’t make you think

Most will forms are fill-in-the-blank projects that make the task appear easier than it is in reality. Completing will forms feels more like filling out information for a Costco membership than making serious long term plans. This underestimation of your will’s importance does not help you design a good estate plan.

Mainly, you may avoid giving your circumstances the consideration they require. When you visit an attorney’s office for estate planning, you have an opportunity to discuss your concerns, ask questions and talk about “what ifs.”  This discussion arms you with the information you need to make the decisions THAT ARE RIGHT FOR YOU AND YOUR LOVED ONES.  With fill-in-the-blanks forms, your focus is on filling in the blanks–not understanding the consequences of those decisions.

For example, specific property requests may seem benign. Here is where you can bequeath everything from your collection of glass miniatures to your car:

This can have three possible effects. You can make property awards that are not enforceable, like to your minor children. This adds time to the probate process as the court attempts to create a trust or appoint a conservator to manage your children’s assets until they reach adulthood.

Also, if you award too much property to a family member on government benefits, that bequest could render them ineligible and cause hardship. There are other ways to protect vulnerable dependents that will not kill their access to vital benefit programs.

Finally, some people will feel the need to list every item of property in this section which is time-consuming and usually unnecessary. It can become confusing if any of the property is no longer in your possession when you pass away.

Even if your estate is simple, reviewing circumstances with an attorney assures you cover important aspects and create an effective estate plan with no doubt as to your intentions. You also avoid the impacts of well-intentioned but poor decisions.

They are generic

Will forms of all types are an attempt to make one size fit all. This never works with estate planning and even if your situation is typical, the form may still not be appropriate. People and their estates are diverse and an estate plan perfect for one client rarely works for anyone else.

For example, these two paragraphs will not help you if you are single and simply fill in the blanks. You may have to change spouse to “friend” or “live in partner”:

 

Additionally, will forms frequently contain provisions that may not be necessary for your situation. If you are single, have charitable aspirations, and never had children, there is no need to designate a trust for minor children (which occupies two pages of this particular will form). That is an unnecessary distraction that prevents you from addressing other matters and may lead you to overlook important aspects of your estate.

There’s no accounting for special circumstances

As indicated above, there are estate planning decisions that can lead to dire consequences. If you care for an older relative or an adult child with special needs, you must handle bequests to them VERY carefully.

For many clients, it may be their first instinct to grant a special-needs child or older relative a large amount of money. If these individuals receive disability payments, Medicare or Medicaid, that decision can cancel out their eligibility. This introduces new complications as your adult dependents attempt to secure health insurance or stretch out the payment to cover all their daily needs.

However, if you see an Oregon estate planning attorney, you can learn about your options. A trust preserves your assets for these family members and allows them to receive payouts from your estate without sacrificing benefits. When you take the do-it-yourself route with a free will form, you may not execute this plan correctly and place your family at risk.

Correct execution becomes more challenging

Your will is not complete until it is executed. This includes your initial on every page, your signature at the end, and the notarized signatures of two witnesses. That end step could be the most challenging aspect of finalizing your will.

On your own, it can take effort to assure your witnesses and notary are available at the same time. Finding witnesses can be a challenge too. It is possible to use relatives as witnesses, even if they are beneficiaries. But attorneys often do not recommend it because that leaves wills VERY vulnerable to court challenges.

Your safest witnesses are disinterested parties with no connection to your will or estate. When you go through an estate attorney, those ready-witnesses include law office staff. Also, every law office contains notaries which make it easy to finalize your will in one appointment.

These logistics are often challenging enough that probate attorneys sometimes see do-it-yourself wills without witnesses or a notary block. That renders the will invalid and you end up with an intestate estate.

Free advice is worth what you pay for and Oregon will forms are the same way! If you want to draft a will without paying excessive legal fees, contact Gruber & Associates, P.C. to schedule a consultation.

Wills vs Trusts I: What Wills Do & Don’t Do

There is no doubt that a will is a helpful estate planning tool. When it meets the requirements for a last will and testament in Oregon, it reduces family stress and streamlines the distribution of assets after death. However, there are limits to a will and that is why it is best that you discuss your circumstances with an estate planning attorney rather than attempting to draft one on your own.

To get an idea of what you need to consider while estate planning in Washington, Multnomah, Marion, and Clackamas counties, here is what wills do and don’t do.